Tobin v. Hewitt Co.

• Decision Date: 21 June 1921
• Docket Number: No. 16581.,16581.
• Citation: 232 S.W. 257
• Parties: TOBIN v. HEWITT CO.
• Court: Missouri Court of Appeals

232 S.W. 257

TOBIN v. HEWITT CO.

No. 16581.

St. Louis Court of Appeals. Missouri.

June 21, 1921.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

"Not to be officially published."

Action by John C. Tobin, as trustee in bankruptcy of the American Welding & Automobile Repair Company, against the Hewitt Company. From a judgment for plaintiff, defendant `appeals. Reversed, and cause remanded.

Kinealy & Kinealy and James A. Ryan, all of St. Louis, for appellant.

Arthur V. Lashly, of St. Louis, for respondent.

ALLEN, P. J.

Plaintiff brings this action as trustee in bankruptcy of the American Welding & Automobile Repair Company, a corporation, against the Hewitt Company, a corporation. The petition is in three counts. In the first count it is alleged that defendant is indebted to the American Welding & Automobile Repair Company in the sum of $258.55, for money had and received by defendant on July 7, 1914, for the use of said company. Alleging demand therefor and defendant's neglect and refusal to pay the same, or any part thereof, judgment is prayed in said sum, with interest from the date of the institution of the suit. The second count in like manner seeks a recovery for $6.75 alleged to have been received by defendant for the use of said American Welding & Automobile Repair Company on March 2, 1915. The third count in like manner seeks a recovery for $70.30 for money alleged to have been received by defendant for the use of the American Welding & Automobile Repair Company on October 3, 1914.

The answer is a general denial. The trial, before the court and a jury, resulted in a verdict for plaintiff on each count; judgment being rendered thereon for plaintiff in the sum of $343.54, from which judgment the defendant prosecutes this appeal.

One Donigan was called as a witness for plaintiff. On direct examination he testified that he was manager of the American Welding & Automobile Repair Company, and also an officer and stockholder thereof. He identified three checks which were introduced in evidence as plaintiff's Exhibits A, B, and C, and testified that they were drawn by him while the company was under his management and were mailed by him to the defendant; that they were drawn on the account of the American Welding & Automobile Repair Company, and were paid out of that account; and that "at the time they were drawn and delivered the American Welding & Automobile Repair Company did not owe the Hewitt Company."

Exhibit A is a check drawn on "Night & Day Bank, St. Louis," dated July 8, 1914, payable to the order of the defendant, Hewitt Company, for $258.35, signed "American Welding & Automobile Repair Company, H. G. Donigan, Manager." Exhibit B is a similar check dated October 1, 1914, for $70.30. Exhibit C is a similar check, dated February 1, 1915, for $6.75.

On cross-examination the witness testified that one Essen was president of the company and one Fuchs, secretary; the witness being "the manager and only active man in the company"; that the office and place of business of the company was at 2230 Olive street, in the city of St. Louis; and that Essen, Fuchs, and the witness constituted all of the stockholders and directors of the company. He testified that, after talking over the matter with the other two directors and stockholders of the company, he opened a saloon, in 1913, on the corner of Twenty-Third and Olive streets, diagonally opposite the place of business of the American Welding & Automobile Repair Company. He was asked by defendant's counsel what was done with the proceeds of the saloon, but objection interposed thereto by plaintiff's counsel was sustained; defendant excepting. He was further asked by defendant's counsel if at the time of the issuance of check marked plaintiff's Exhibit A the American Welding & Automobile Repair Company had any money in its possession coming from the saloon business. This was objected to as being immaterial, and the objection was sustained; defendant excepting. The witness was then asked where the money was obtained with which to pay that check. Objection to this was sustained; defendant excepting. Thereupon the following occurred:

"Was the amount of money represented by these three checks due the Hewitt Company for supplies furnished in the saloon? A. Where did the money come from?

"Q. No. Was it due to the Hewitt Company for supplies used in the saloon? A. Was it due the Hewitt Company?

"Q. Yes. A. Sure, or we wouldn't have given it to them."

Objection was sustained to a further question tending to show where the money came from to meet these checks; defendant excepting. The witness testified that Fuchs, secretary of the corporation, was in charge of the saloon, received the money from the operation thereof, took it from the cash register, and turned it over to the witness. Thereupon the following occurred:

"Q. What did he do with the money from the saloon?

"Mr. Lashly: I object to what he did with the money from the saloon.

"The Court: The objection is sustained.

"Mr. Kinealy: We save our exception to the ruling of the court.

"Mr. Kinealy: Q. At the time these checks were issued by you, was there any money in the account of this corporation derived from the operation of this saloon sufficient to meet these checks?

"Mr. Lashly: We object,...